IRC at risk in reforms

The NSW government’s decision last week to move occupational health and safety cases from the state Industrial Relations Court to the criminal courts may signal the end of the IRC.

The Work Health and Safety and Occupational Health and Safety Amendment Bills, introduced into Parliament on May 5 and before the upper house, would enact harmonised national health and safety laws in NSW.

But they also remove OHS cases – the bulk of the IRC’s work – from its jurisdiction; a move that has come as a surprise to IRC president, judge
Roger Boland
, who has criticised the government for not consulting the IRC before introducing the bills.

Middletons employment partner Gerard Phillips said government actions might be “fallout" from criticism of the IRC as a result of “very stringent laws" it has had to apply.

The IRC and state OHS laws came under fire last year from the High Court, when it overturned the IRC’s finding that hobby farmer Graeme Kirk was liable for the death of his farm manager in a company-owned vehicle accident. High Court judge Dyson Heydon said at the time a “difficulty in setting up specialist courts is that they tend to become over­enthusiastic about vindicating the purposes for which they were set up".

Mr Phillips said the OHS bills left open what the decision meant for survival of Australia’s oldest industrial commission. “You can’t have removed the bulk of . . . their jurisdiction without having considered what that would mean. What this could mean in NSW is the end of the industrial commission," he said.

In the lower house, NSW Deputy Premier Andrew Stoner said the laws created “serious criminal offences and it is the government’s view that such offences should be heard by mainstream criminal courts".